case 1:08-cv-01328-rjs document 78 filed 01/03/11 page 1 of...

Case 1:08-cv-01328-RJS Document 78 Filed 01/03/11 of 49

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DOCumENTh

UNITED STATES DISTRICT COURT ELEC T RGNICj ;LLY FILED

SOUTHERN DISTRICT OF NEW YORK DOC 0:

DATE FILED: ^ 1I

xIn re ORION SECURITIES LITIGATION Civil Action No. 1:08-cv-01328-RJS

CLASS ACTION This Document Relates To:

ALL ACTIONS. x

ORDER PRELIMINARILY APPROVING SETTLEMENT AND PROVIDINGFOR NOTICE

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WHEREAS, a consolidated action is pending before this Court styled In re Orion Securities

Litigation, Civil Action No. 1:08-cv-01328-RJS (the "Litigation");

WHEREAS, the parties having made application, pursuant to Federal Rule of Civil

Procedure 23(e), for an order approving the settlement of this Litigation, in accordance with a

Settlement Agreement dated September 16, 2010, which, together with the Exhibits annexed thereto,

sets forth the terms and conditions for a proposed settlement of the Litigation and for dismissal of the

Litigation with prejudice upon the terms and conditions set forth therein; and the Court having read

and considered the Settlement Agreement and the Exhibits annexed thereto; and

WHEREAS, unless otherwise defined, all defined terms herein have the same meanings as

set forth in the Settlement Agreement.

NOW, THEREFORE, IT IS HEREBY ORDERED:

1. The Court does hereby preliminarily approve the Settlement Agreement and the

Settlement set forth therein, subject to further consideration at the Final Approval Hearing described

below.

2. A hearing (the "Final Approval Hearing") shall be held before this Court on April 14,

2011, at 10:00 a.m., to determine whether the proposed Settlement of the Litigation on the terms and

conditions provided for in the Settlement Agreement is fair, reasonable, and adequate to the Class

and should be approved by the Court; whether an Order and Final Judgment as provided in ¶1.15 of

the Settlement Agreement should be entered; whether the proposed Plan of Allocation should be

approved; and to determine any amount of fees and expenses that should be awarded to Lead

Counsel. The Court may adjourn the Final Approval Hearing without further notice to members of

the Class.

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3. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Court preliminarily

certifies, solely for purposes of the Settlement Agreement and effectuating the Settlement, a Class of

all Persons who purchased the common stock of Orion pursuant and/or traceable to the Company's

initial public offering on or about December 18, 2007, through February 7, 2008. Excluded from the

Class are Defendants, members of the immediate family of each of the Defendants, any person, firm,

trust, corporation, officer, director or other individual or entity in which any Defendant has a

controlling interest or which is related to or affiliated with any of the Defendants, and the legal

representatives, agents, affiliates, heirs, successors-in-interest, or assigns of any such excluded parry.

Also excluded from the Class are any putative Class Members who timely and validly exclude

themselves from the Class in accordance with the requirements set forth in the Notice.

4. Solely for purposes of the Settlement Agreement and the Settlement, the Court

preliminarily finds that (a) the members of the Class are so numerous that joinder of all Class

Members in the Litigation is impracticable; (b) there are questions of law and fact common to the

Class which predominate over any individual questions; (c) the claims of the Lead Plaintiff are

typical of the claims of the Class; (d) Lead Plaintiff and its counsel have fairly and adequately

represented and protected the interests of all of the Class Members; and (e) a class action is superior

to other available methods for the fair and efficient adjudication of the controversy, considering (i)

the interests of the members of the Class in individually controlling the prosecution of the separate

actions; (ii) the extent and nature of any litigation concerning the controversy already commenced by

members of the Class; (iii) the desirability or undesirability of continuing the litigation of these

claims in this particular forum; and (iv) the difficulties likely to be encountered in the management

of the class action.

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5. Pursuant to Rule 23 (c) of the Federal Rules of Civil Procedure, the Court appoints the

firm Gilardi & Co. LLC. ("Claims Administrator") to supervise and administer the notice procedure

as well as the processing of claims as more fully set forth below:

(a) Not later than twenty (20) calendar days after the entry of this Order, Orion

shall, at its own expense, provide to the Claims Administrator, in an electronic format acceptable to

the Claims Administrator, Orion's transfer records for the Class Period;

(b) Not later than January 18, 2011 (the "Notice Date"), the Claims Administrator

shall cause a copy of the Notice and the Proof of Claim, substantially in the forms annexed as

Exhibits A-1 and A-2 hereto, to be mailed by First-Class Mail to all Class Members who can be

identified with reasonable effort and to be posted on its website at www.gilardi.com ;

(c) Not later than January 25, 2011, the Claims Administrator shall cause the

Summary Notice to be published once in the national edition of Investor's Business Daily, and over

the PR Newswire; and

(d) Not later than March 24, 2011, Lead Counsel shall serve on Defendants'

counsel and file with the Court proof, by affidavit or declaration, of such mailing and publishing.

6. Nominees who purchased Orion common stock for the benefit of another Person

during the period between December 18, 2007 and February 7, 2008, inclusive, shall be requested to

send the Notice and Proof of Claim to all such beneficial owners of Orion common stock within ten

(10) calendar days after receipt thereof, or send a list of the names and addresses of such beneficial

owners to the Claims Administrator within ten (10) calendar days of receipt thereof, in which event

the Claims Administrator shall promptly mail the Notice and Proof of Claim to such beneficial

owners.

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7. Other than the cost of providing Orion's transfer records to the Claims Administrator,

all fees, costs, and expenses incurred in identifying and notifying members of the Class shall be paid

from the Settlement Fund and in no event shall Defendants bear any responsibility for such fees,

costs, or expenses.

8. All members of the Class shall be bound by all determinations and judgments in the

Litigation concerning the Settlement, including, but not limited to, the releases provided for therein,

whether favorable or unfavorable to the Class, regardless of whether such persons seek or obtain by

any means, including, without limitation, by submitting a Proof of Claim or any similar document,

any distribution from the Settlement Fund or the Net Settlement Fund.

9. Class Members who wish to participate in the Settlement shall complete and submit

the Proof of Claim in accordance with the instructions contained therein. Unless the Court orders

otherwise, all Proofs of Claim must be submitted no later than ninety (90) days from the Notice

Date. Any Class Member who does not submit a Proof of Claim within the time provided shall be

barred from sharing in the distribution of the proceeds of the Net Settlement Fund, unless otherwise

ordered by the Court, but shall nevertheless be bound by any final judgment entered by the Court.

Notwithstanding the foregoing, Lead Counsel shall have the discretion to accept late-submitted

claims for processing by the Claims Administrator so long as distribution of the Net Settlement Fund

is not materially delayed thereby.

10. Any member of the Class may enter an appearance in the Litigation, at his, her, or its

own expense, individually or through counsel of their own choice. If they do not enter an

appearance, they will be represented by Lead Counsel.

11. Any Person falling within the definition of the Class may, upon request, be excluded

or "opt out" from the Class. Any such Person must submit to the Claims Administrator a request for

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exclusion ("Request for Exclusion"), postmarked no later than March 31, 2011. A Request for

Exclusion must be signed and state (a) the name, address, and telephone number of the Person

requesting exclusion; (b) the Person's purchases of Orion common stock pursuant and/or traceable to

Orion's initial public offering on or about December 18, 2007, through February 7, 2008, including

the dates, the number of shares of Orion stock purchased, and price paid for each such purchase; and

(c) that the Person wishes to be excluded from the Class. All Persons who submit valid and timely

Requests for Exclusion in the manner set forth in this paragraph shall have no rights under the

Settlement Agreement, shall not share in the distribution of the Net Settlement Fund, and shall not be

bound by the Settlement Agreement or any final judgment.

12. Lead Counsel shall cause to be provided to Defendants' counsel copies of all

Requests for Exclusion, and any written revocation of Requests for Exclusion, as expeditiously as

possible and in any event within ten (10) days prior to the Final Approval Hearing.

13. Any member of the Class may appear and show cause, if he, she, or it has any reason

why the proposed Settlement of the Litigation should not be approved as fair, reasonable, and

adequate, or why a judgment should not be entered thereon, why the Plan of Allocation should not

be approved, why attorneys' fees and expenses should not be awarded to counsel for Lead Plaintiff;

provided, however, that no Class Member or any other Person shall be heard or entitled to contest

the approval of the terms and conditions of the proposed Settlement, or, if approved, the Order and

Final Judgment to be entered thereon approving the same, or the order approving the Plan of

Allocation, or any attorneys' fees and expenses to be awarded to counsel for Lead Plaintiff, unless

written objections and copies of any papers and briefs are received by Ellen Gusikoff Stewart,

Robbins Geller Rudman & Dowd LLP, 655 West Broadway, Suite 1900, San Diego, CA 92101;

Matthew R. Kipp, Skadden, Arps, Slate, Meagher & Flom LLP, 155 N. Wacker Dr., Suite 2800,

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event the Court does not approve the Settlement, or it otherwise fails to become effective, neither

Lead Plaintiff nor any of its counsel shall have any obligation to repay any amounts actually and

properly incurred or disbursed pursuant to 15.2 of the Settlement Agreement, except as required

under 16.2 of the Settlement Agreement,

19. Neither the Settlement Agreement, nor any of its terms or provisions, nor any of the

negotiations or proceedings connected with it, shall be construed as an admission or concession by

Defendants or any other Released Persons of the truth of any of the allegations in the Litigation, or

of any liability, fault, or wrongdoing of any kind.

20. The Court reserves the right to adjourn the date of the Final Approval Hearing

without further notice to the members of the Class, and retains jurisdiction to consider all further

applications arising out of or connected with the proposed Settlement. The Court may approve the

Settlement, with such modifications as may be agreed to by the Settling Parties, if appropriate,

without further notice to the Class.

IT IS SO ORDERED.

DATED: ^ .^_ 1%THE HON • BLE ' I J. SULLIVANUNITED STATES DISTRICT JUDGE

I

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Chicago, IL 60606, and Lee G. Dunst, Gibson, Dunn & Crutcher LLP, 200 Park Avenue, 47th Floor,

New York, NY 10166, on or before March 31, 2011; and said objections, papers, and briefs are filed

with the Clerk of the United States District Court for the Southern District of New York, on or

before March 31, 2011. Any member of the Class who does not make his, her, or its objection in the

manner provided shall be deemed to have waived such objection and shall forever be foreclosed

from making any objection to the fairness, reasonableness, or adequacy of the proposed Settlement

as incorporated in the Settlement Agreement, to the Plan of Allocation, and to the award of

attorneys' fees and expenses to Lead Plaintiff's counsel, unless otherwise ordered by the Court.

14. All funds held by the Escrow Agent(s) shall be deemed and considered to be in

custodia legis, and shall remain subject to the jurisdiction of the Court, until such time as such funds

shall be distributed pursuant to the Settlement Agreement and/or further order(s) of the Court.

15. All papers in support of the Settlement, Plan of Allocation, and any application by

counsel for Lead Plaintiff for attorneys' fees and expenses shall be filed and served no later than

twenty-one (21) calendar days prior to the Final Approval Hearing and any reply papers shall be

filed and served seven (7) calendar days prior to the Final Approval Hearing.

16. The Released Persons shall have no responsibility for the Plan of Allocation or any

application for attorneys' fees or expenses submitted by Lead Plaintiff's counsel, and such matters

will be considered separately from the fairness, reasonableness, and adequacy of the Settlement.

17. At or after the Final Approval Hearing, the Court shall determine whether the Plan of

Allocation proposed by Lead Plaintiff's counsel, and any application for attorneys' fees and

expenses should be approved.

18. All reasonable expenses incurred in identifying and notifying Class Members as well

as administering the Settlement Fund shall be paid as set forth in the Settlement Agreement. In the

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CERTIFICATE OF SERVICE

I hereby certify that on December 28, 2010, I submitted the foregoing to

[email protected] and e-mailed to the e-mail addresses denoted on the

Court's Electronic Mail Notice List, and I hereby certify that I have mailed the foregoing document

or paper via the United States Postal Service to the non-CM/ECF participants indicated on the

attached Manual Notice List.

I certify under penalty of perjury under the laws of the United States of America that the

foregoing is true and correct. Executed on December 28, 2010.

s/ Ellen Gusikoff Stewart ELLEN GUSIKOFF STEWART

ROBBINS GELLER RUDMAN& DOWD LLP

655 West Broadway, Suite 1900San Diego, CA 92101-3301Telephone: 619/231-1058619/231-7423 (fax)

E-mail: [email protected]

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Manual List

Richard A. ManiskasDavid M. Promisloff

Cynthia J. Billings

Barroway Topaz Kessler MeltzerSullivan, Ward, Asher &Patton, P.C.25800 Northwestern Highway

& Check, LLP1000 Maccabees Center

280 King of Prussia RoadRadnor, PA 19087

Southfield, MI 48075

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EXHIBIT A-1


UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK


CLASS ACTIONThis Document Relates To:

ALL ACTIONS. x

NOTICE OF PENDENCY AND PROPOSED SETTLEMENT OF CLASS ACTION

EXHIBIT A-1

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TO: ALL PERSONS WHO PURCHASED ORION ENERGY SYSTEMS, INC. ("ORION" ORTHE "COMPANY") COMMON STOCK PURSUANT AND/OR TRACEABLE TOORION'S INITIAL PUBLIC OFFERING ON OR ABOUT DECEMBER 18, 2007,THROUGH FEBRUARY 7, 2008, INCLUSIVE ("CLASS PERIOD")

PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY. YOUR RIGHTS

MAY BE AFFECTED BY PROCEEDINGS IN THIS LITIGATION. PLEASE NOTE THAT IF

YOU ARE A CLASS MEMBER, YOU MAY BE ENTITLED TO SHARE IN THE PROCEEDS

OF THE SETTLEMENT DESCRIBED IN THIS NOTICE. TO CLAIM YOUR SHARE OF THIS

FUND, YOU MUST SUBMIT A VALID PROOF OF CLAIM AND RELEASE POSTMARKED

ON OR BEFORE APRIL 18, 2011.

This Notice has been sent to you pursuant to Rule 23 of the Federal Rules of Civil Procedure

and an Order of the United States District Court for the Southern District of New York (the "Court").

The purpose of this Notice is to inform you of the proposed Settlement of this class action litigation

and of the hearing to be held by the Court to consider the fairness, reasonableness, and adequacy of

the Settlement. The Settlement resolves the Class's claims against Orion, Neal R. Verfuerth, Daniel

J. Waibel, Diana Propper de Callejon, Thomas A. Quadracci, Michael J. Potts, James R. Kackley,

Eckhart G. Grohmann, Patrick J. Trotter, Thomas Weisel Partners, LLC, Canaccord Adams, Inc.,

and Pacific Growth Equities, LLC, n/k/a Pacific Growth Holdings, LLC (collectively,

"Defendants"). This Notice describes the rights you may have in connection with the Settlement and

what steps you may take in relation to the Settlement and this class action litigation.

The proposed Settlement creates a fund in the amount of $3,250,000 in cash and will include

interest that accrues on the fund prior to distribution. Based on Lead Counsel's estimate of the

number of shares entitled to participate in the Settlement and the anticipated number of claims to be

submitted by Class Members, the average distribution per share to Class Members who purchased

Orion common stock pursuant and/or traceable to the Company's initial public offering during the

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Class Period would be approximately $0.37 before deduction of Court-approved fees and expenses.

Your actual recovery from this fund will depend on a number of variables, including the number of

claimants, the number of shares they purchased, the number of shares of Orion common stock you

purchased, the expense of administering the claims process, and the timing of your purchases and

sales, if any (see the Plan of Allocation below for a more detailed description of how the settlement

proceeds will be allocated among Class Members).

Lead Plaintiff and Defendants do not agree on the average amount of damages per share that

would be recoverable if Lead Plaintiff was to have prevailed on each claim asserted. The issues on

which the parties disagree include: (1) whether the statements made or facts allegedly omitted were

false, material, or otherwise actionable under the federal securities laws; (2) the extent to which the

various matters that Lead Plaintiff alleged were materially false or misleading influenced (if at all)

the trading price of Orion common stock at various times during the Class Period; (3) the extent to

which the various allegedly adverse material facts that Lead Plaintiff alleged were omitted

influenced (if at all) the trading price of Orion common stock at various times during the Class

Period; (4) the extent to which external factors, such as general market conditions, influenced the

trading price of Orion common stock at various times during the Class Period; (5) the effect of

various market forces influencing the trading price of Orion common stock at various times during

the Class Period; (6) the amount by which Orion common stock was allegedly artificially inflated (if

at all) during the Class Period; and (7) the appropriate economic model for determining the amount

by which Orion common stock was allegedly artificially inflated (if at all) during the Class Period.

Lead Plaintiff believes that the proposed Settlement is a very good recovery and is in the best

interests of the Class. Because of the risks associated with continuing to litigate and proceeding to

trial, there was a danger that Lead Plaintiff would not have prevailed on any of its remaining claims,

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in which case the Class would receive nothing. For example, Lead Plaintiff faced the possibility that

all or many of the claims remaining in this case could have been dismissed at summary judgment or

trial. In addition, the amount of damages recoverable by the Class was and is challenged by

Defendants. Recoverable damages in this case are limited to losses caused by conduct actionable

under applicable law and, had the Litigation gone to trial, Defendants intended to assert that all of

the losses of Class Members were caused by non-actionable market, industry, or general economic

factors. Defendants would also assert that throughout the Class Period, the uncertainties and risks

associated with Orion's business and financial condition were fully and adequately disclosed.

Plaintiffs' Counsel have not received any payment for their services in conducting this

Litigation on behalf of Lead Plaintiff and the members of the Class, nor have they been reimbursed

for their out-of-pocket expenditures. If the Settlement is approved by the Court, Lead Counsel will

apply to the Court for attorneys' fees not to exceed 30% of the settlement proceeds plus expenses not

to exceed $100,000, both to be paid from the Settlement Fund. If the amount requested by counsel is

approved by the Court, the average cost per share would be approximately $0.12.

This Notice is not an expression of any opinion by the Court about the merits of any of the

claims or defenses asserted by any party in this Litigation or the fairness or adequacy of the proposed

Settlement.

For further information regarding this Settlement you may contact: Rick Nelson, c/o

Shareholder Relations, Robbins Geller Rudman & Dowd LLP, 655 West Broadway, Suite 1900, San

Diego, California 92101, Telephone: 800/449-4900. Please do not call any representative of the

Defendants or the Court.

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I. NOTICE OF HEARING ON PROPOSED SETTLEMENT

A settlement hearing (the "Settlement Hearing") will be held on April 14, 2011, at 10:00

a.m., before the Honorable Richard J. Sullivan, United States District Judge, at the Daniel Patrick

Moynihan United States Courthouse, Southern District of New York, 500 Pearl Street, New York,

New York 10007. The purpose of the Settlement Hearing will be to determine: (1) whether the

Settlement consisting of $3,250,000 in cash plus accrued interest on the Settlement Fund should be

approved as fair, reasonable, and adequate to each of the Settling Parties; (2) whether the proposed

plan to distribute the settlement proceeds (the "Plan of Allocation") is fair, reasonable, and adequate;

(3) whether the application by Lead Counsel for an award of attorneys' fees and expenses should be

approved; and (4) whether the Litigation should be dismissed with prejudice. The Court may

adjourn or continue the Settlement Hearing without further notice to the Class.

II. DEFINITIONS USED IN THIS NOTICE

1. "Action" or "Litigation" mean the putative shareholder class action captioned In re

Orion Securities Litigation, Civil Action No. 1:08-cv-0 1 328-RJS, filed in the United States District

Court for the Southern District of New York.

2. "Authorized Claimant" means any Class Member whose claim for recovery has been

allowed pursuant to the terms of the Settlement Agreement.

3. "Claims Administrator" means the firm Gilardi & Co. LLC.

4. "Class" and "Class Members" mean all Persons who purchased the common stock of

Orion pursuant and/or traceable to the Company's initial public offering on or about December 18,

2007, through February 7, 2008. Excluded from the Class are Defendants, members of the

immediate family of each of the Defendants, any person, firm, trust, corporation, officer, director or

other individual or entity in which any Defendant has a controlling interest or which is related to or

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affiliated with any of the Defendants, and the legal representatives, agents, affiliates, heirs,

successors-in-interest, or assigns of any such excluded party. Also excluded from the Class are any

putative Class Members who timely and validly exclude themselves from the Class in accordance

with the requirements set forth in this Notice.

5. "Class Period" means the period between December 18, 2007 and February 7, 2008,

inclusive.

6. "Defendants" means the Orion Defendants and the Underwriter Defendants.

7. "Defendants' Affiliates" means any and all of Defendants' respective present, former

and future officers, directors, employees, managers, members, managing members, fiduciaries,

managing directors, agents, managing agents, attorneys, legal counsel, advisors, consultants,

insurers, co-insurers, reinsurers, accountants, auditors, trustees, underwriters, financial advisors,

commercial bank lenders, investment bankers, associates, representatives, affiliates, parents,

subsidiaries, partnerships, member firms, partners, joint ventures, limited liability companies,

corporations, divisions, shareholders, principals, trusts, foundations, family members, beneficiaries,

distributors, heirs, executors, personal representatives, estates, administrators, predecessors,

successors and assigns, and their respective former, current and future direct or indirect equity

holders, controlling persons, stockholders, general or limited partners or partnerships, or assignees

and including, but not limited to, any directors, officers, agents, partners, members, managers, or

employees of any of the foregoing.

8. "Effective Date" means the date upon which the Settlement contemplated by the

Settlement Agreement shall become effective, as set forth in ¶11.1 of the Settlement Agreement.

9. "Escrow Agent" means Robbins Geller Rudman & Dowd LLP or its successor(s).

The Escrow Agent shall maintain the Settlement Fund in a segregated escrow account not available

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to the creditors of the Escrow Agent and shall not disburse any amount from the escrow account

except as authorized by the Settlement Agreement.

10. "Final" means: (i) the date of final affirmance on an appeal of the Order and Final

Judgment (as defined below), the expiration of the time for a petition for or a denial of a writ of

certiorari to review the Order and Final Judgment and, if certiorari is granted, the date of final

affirmance of the Order and Final Judgment following review pursuant to that grant; or (ii) the date

of final dismissal of any appeal from the Order and Final Judgment or the final dismissal of any

proceeding on certiorari to review the Order and Final Judgment; or (iii) if no appeal is filed, the

expiration date of the time for the filing or noticing of any appeal from the Court's Order and Final

Judgment approving the Settlement Agreement, substantially in the form of Exhibit B attached to the

Settlement Agreement. Any proceeding or order, or any appeal or petition for a writ of certiorari

pertaining solely to any plan of allocation, and/or application for attorneys' fees or expenses, shall

not in any way delay or preclude the Order and Final Judgment from becoming Final.

11. "Individual Defendants" means Neal R. Verfuerth, Daniel J. Waibel, Diana Propper

de Callejon, Thomas A. Quadracci, Michael J. Potts, James R. Kackley, Eckhart G. Grohmann, and

Patrick J. Trotter.

12. "Lead Counsel" means Robbins Geller Rudman & Dowd LLP, formerly known as

Coughlin Stoia Geller Rudman & Robbins LLP, or its successor(s).

13. "Lead Plaintiff' means Iron Workers Local No. 25 Pension Fund.

14. "Notice" means this Notice of Pendency and Proposed Settlement of Class Action.

15. "Order and Final Judgment" means the proposed order to be entered by the Court

approving the Settlement, substantially in the form attached to the Settlement Agreement as Exhibit

B.

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16. "Orion Defendants" means Orion and the Individual Defendants.

17. "Parties" means Lead Plaintiff (on behalf of itself and each of the Class Members)

and Defendants.

18. "Person" means any individual, corporation, limited liability company, professional

corporation, limited liability partnership, partnership, limited partnership, association, joint stock

company, estate, legal representative, trust, unincorporated association, insurance company,

government or any political subdivision or agency thereof, and any business or legal entity and their

spouses, heirs, predecessors, successors, representatives, or assignees.

19. "Plaintiffs' Counsel" means any attorney or firm that has represented any plaintiff in

the Litigation, including Robbins Geller Rudman & Dowd LLP and Sullivan, Ward, Asher & Patton,

P.C.

20. "Preliminary Approval Order" means the proposed order entered by the Court

preliminarily approving the Settlement and directing notice thereof to the Class.

21. "Proof of Claim" means the proposed Proof of Claim and Release form to be

submitted by Class Members.

22. "Released Claims" means all of the Released Plaintiffs' Claims and all of the

Released Defendants' Claims, as defined herein.

23. "Released Defendants' Claims" is defined in 112.3 of the Settlement Agreement.

24. "Released Persons" is defined in 112.1 of the Settlement Agreement.

25. "Released Plaintiffs' Claims" is defined in ¶12.2 of the Settlement Agreement.

26. "Settlement" means the settlement embodied by the Settlement Agreement.

27. "Settlement Hearing" means the final hearing to be held by the Court to determine

whether to approve the Settlement of the Litigation as set forth herein.

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28. "Settling Parties" has the same meaning as Parties.

29. "Summary Notice" means the Summary Notice to be published in Investor's Business

Daily, and over the PR Newswire, substantially in the form attached to the Settlement Agreement as

Exhibit A-3, or as modified pursuant to agreement of the Parties or order of the Court.

30. "Underwriter Defendants" means Thomas Weisel Partners, LLC, Canaccord Adams,

Inc., and Pacific Growth Equities, LLC, n/k/a Pacific Growth Holdings, LLC.

31. "Unknown Claims" means any Released Plaintiffs' Claim which the Lead Plaintiff or

any Class Member does not know or suspect to exist in his, her or its favor at the time of the release

of the Released Persons, which, if known by him, her or it, would or might have affected his, her or

its settlement with and release of the Released Persons, or would or might have affected his, her or

its decision not to object to this Settlement; and any Released Defendants' Claim which any

Defendant does not know or suspect to exist in his, her or its favor at the time of the release of the

Released Persons, which, if known by him, her or it, would or might have affected his, her or its

decision(s) with respect to the Settlement. Lead Plaintiff or Class Members may hereafter discover

facts in addition to or different from those which he, she or it now knows or believes to be true with

respect to the subject matter of the Released Plaintiffs' Claims, but Lead Plaintiff and the Class

Members shall expressly, upon the Effective Date, be deemed to have, and by operation of the Order

and Final Judgment shall have, fully, finally, and forever settled and released any and all Released

Plaintiffs' Claims (including Unknown Claims, as defined herein), known or unknown, suspected or

unsuspected, contingent or non-contingent, whether or not concealed or hidden, which now exist, or

heretofore have existed, upon any theory of law or equity now existing or coming into existence in

the future, including, but not limited to, conduct that is negligent, intentional, with or without malice,

or a breach of any duty, law or rule, without regard to the subsequent discovery or existence of such

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different or additional facts. Likewise, Defendants may hereafter discover facts in addition to or

different from those which he, she or it now knows or believes to be true with respect to the subject

matter of the Released Defendants' Claims, but Defendants shall expressly waive, and by operation

of the Order and Final Judgment shall have fully, finally, and forever settled and released any and all

Released Defendants' Claims (including Unknown Claims, as defined herein), known or unknown,

suspected or unsuspected, contingent or non-contingent, whether or not concealed or hidden, which

now exist, or heretofore have existed, upon any theory of law or equity now existing or coming into

existence in the future, including, but not limited to, breach of any duty, law or rule, without regard

to the subsequent discovery or existence of such different or additional facts. Lead Plaintiff and

Defendants acknowledge, and the Class Members by operation of law shall be deemed by operation

of the Order and Final Judgment to have acknowledged, that the inclusion of "Unknown Claims" in

the definition of Released Plaintiffs' Claims and Released Defendants' Claims was separately

bargained for and was a key element of the Settlement, of which this release is a material and

essential part, and expressly waive the benefits of (i) the provisions of § 1542 of the California Civil

Code, which provides that:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THECREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HERFAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWNBY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HERSETTLEMENT WITH THE DEBTOR,

and (ii) any and all provisions or rights conferred by any law of any state or territory of the United

States, or principle of common law, which is similar, comparable or equivalent to California Civil

Code §1542.

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III. THE LITIGATION

On and after February 11, 2008, three securities class action complaints were filed in the

United States District Court for the Southern District of New York on behalf of purchasers of Orion

common stock pursuant and/or traceable to the Company's initial public offering on or about

December 18, 2007. By Memorandum and Order dated July 7, 2008, the Court consolidated these

actions under the caption above, appointed Lead Plaintiff, and approved Lead Plaintiff's choice of

Lead Counsel

On August 1, 2008, Lead Plaintiff filed a consolidated amended class action complaint. The

Orion Defendants and the Underwriter Defendants filed motions to dismiss that complaint on

September 15, 2008 and January 16, 2009, respectively. Following full briefing and oral argument,

on August 20, 2009, the Court entered an Order granting in part and denying in part the Orion

Defendants' and the Underwriter Defendants' respective motions to dismiss.

Lead Plaintiff filed its Second Consolidated Amended Class Action Complaint for Violations

of the Federal Securities Laws (the "Complaint") on September 4, 2009. Defendants filed answers

to the Complaint on October 9, 2009.

On October 16, 2009, the Parties jointly submitted a proposed case management plan and

scheduling order, which was approved by the Court on October 19, 2009. On March 25, 2010, to

afford the Parties a reasonable opportunity to fully explore the possibility of settlement, the Court

issued an order staying the proceedings until May 14, 2010.

In an effort to resolve the Litigation, the Lead Plaintiff and the Orion Defendants attended a

mediation before Jed D. Melnick, of the Weinstein Mediation Center, on April 14, 2010. Following

that mediation session, and further discussions between the Lead Plaintiff and the Orion Defendants,

the Lead Plaintiff and the Orion Defendants reached an agreement-in-principle to settle the

-10-524343_4

f


Litigation on the terms set forth herein. The Underwriter Defendants did not attend the mediation

session or participate in these subsequent discussions, but the agreement-in-principle to settle the

Litigation includes the Underwriter Defendants on the terms set forth herein.

IV. CLAIMS OF THE LEAD PLAINTIFF AND BENEFITS OFSETTLEMENT

Lead Plaintiff believes that the claims asserted in the Litigation have merit and that the

evidence developed to date supports those claims. However, Lead Plaintiff recognizes and

acknowledges the expense and length of continued proceedings necessary to prosecute the Litigation

against Defendants through trial and through appeals. Lead Plaintiff also has taken into account the

uncertain outcome and the risk of any litigation, especially in complex actions such as this

Litigation, as well as the difficulties and delays inherent in such litigation. Lead Plaintiff is also

mindful of the inherent difficulties of proof under and possible defenses to the securities law

violations asserted in the Litigation. Lead Plaintiff believes that the Settlement set forth in the

Settlement Agreement confers substantial benefits upon the Class. Based on their evaluation, Lead

Plaintiff and Lead Counsel have determined that the Settlement set forth in the Settlement

Agreement is in the best interests of Lead Plaintiff and the Class.

V. THE DEFENDANTS' DENIALS OF WRONGDOING AND LIABILITY

Defendants expressly have denied and continue to deny all charges of wrongdoing or liability

against them arising out of any of the conduct, statements, acts, or omissions alleged, or that could

have been alleged, in the Litigation, and continue to believe the claims asserted against them in the

Complaint are without merit.

Nonetheless, Defendants have concluded that further conduct of the Litigation would be

protracted and expensive and that it is desirable that the Litigation be fully and finally settled in the

manner and upon the terms and conditions set forth in the Settlement Agreement. They also have

-11-524343_4


taken into account the uncertainty and risks inherent in any litigation, especially in complex cases

like this Litigation and have, therefore, determined that it is desirable and beneficial to them that the

Litigation be settled in the manner and upon the terms and conditions set forth in the Settlement

Agreement.

VI. TERMS OF THE PROPOSED SETTLEMENT

The amount of $3,250,000 has been transferred to an interest-bearing escrow account under

the control of the Escrow Agent. This principal amount of $3,250,000 in cash, plus any accrued

interest, shall constitute the Settlement Fund. A portion of the settlement proceeds will be used for

certain administrative expenses, including costs of printing and mailing this Notice, the cost of

publishing a newspaper notice, payment of any taxes assessed against the Settlement Fund, and costs

associated with the processing of claims submitted. In addition, as explained below, a portion of the

Settlement Fund may be awarded by the Court to Lead Counsel as attorneys' fees and for expenses

incurred in litigating the case. The balance of the Settlement Fund (the "Net Settlement Fund") will

be distributed according to the Plan of Allocation described below to Class Members who submit

valid and timely Proofs of Claim.

VII. PLAN OF ALLOCATION

The Net Settlement Fund will be distributed to Class Members who submit valid, timely

Proofs of Claim ("Authorized Claimants") under the Plan of Allocation described below. The Plan

of Allocation provides that you will be eligible to participate in the distribution of the Net Settlement

Fund only if you have a net loss on all transactions in Orion common stock during the Class Period.

For purposes of determining the amount an Authorized Claimant may recover under the Plan

of Allocation, Lead Plaintiff's counsel have consulted with their damage consultants. The Plan of

Allocation reflects an assessment of the damages that could have been recovered as well as Lead

-12-524343_4


Plaintiff's counsel's assessment of the likelihood of establishing liability for various periods of the

Class.

To the extent there are sufficient funds in the Net Settlement Fund, each Authorized Claimant

will receive an amount equal to the Authorized Claimant's claim, as defined below. If, however, the

amount in the Net Settlement Fund is not sufficient to permit payment of the total claim of each

Authorized Claimant, then each Authorized Claimant shall be paid the percentage of the Net

Settlement Fund that each Authorized Claimant's claim bears to the total of the claims of all

Authorized Claimants. Payment in this manner shall be deemed conclusive against all Authorized

Claimants.

The total of all profits shall be subtracted from the total of all losses from transactions during

the Class Period to determine if a Class Member has a claim. Only if a Class Member had a net loss,

after all profits from transactions in Orion common stock during the Class Period are subtracted from

all losses, will such Class Member be eligible to receive a distribution from the Net Settlement Fund.

Section 11 Claims for the December 2007 Initial Public Offering

CUSIP: 686275108

Initial Public Offering Price: $13.00 per shareClosing Price on the date the lawsuit was filed': $ 9.00 per share

For shares of Orion purchased pursuant to, and traceable to, the Company's offeringprospectus dated December 18, 2007, and

1) sold prior to February 11, 2008, the claim per share is the lesser of (i) the Purchase Priceper share less the Sales Price per share, or (ii) $13.00 less the Sales Price per share.

' First Class Action Complaint filed on February 11, 2008.

-13-524343_4


2) retained at the end of February 10, 2008, or, sold on or after February 11, 2008, the claimper share is the lesser of (i) the Purchase Price per share less the Sales Price per share, or (ii)$13.00 less $9.00.

The date of purchase or sale is the "contract" or "trade" date as distinguished from the

"settlement" date. The determination of the price paid per share and the price received per share,

shall be exclusive of all commissions, taxes, fees, and charges.

For Class Members who made multiple purchases or sales during the Class Period, the first-

in, first-out ("FIFO") method will be applied to such holdings, purchases, and sales for purposes of

calculating a claim. Under the FIFO method, sales of shares during the Class Period will be

matched, in chronological order, first against shares held at the beginning of the Class Period. The

remaining sales of shares during the Class Period will then be matched, in chronological order,

against shares purchased during the Class Period.

A Class Member will be eligible to receive a distribution from the Net Settlement Fund only

if such Class Member had a net loss, after all profits from transactions in Orion common stock

during the Class Period are subtracted from all losses.

The Court has reserved jurisdiction to allow, disallow, or adjust the claim of any Class

Member on equitable grounds.

VIII. ORDER CERTIFYING A CLASS FOR PURPOSES OF SETTLEMENT

On December 28, 2010, the Court preliminarily certified a class for purposes of settlement.

The Class is defined above.

IX. PARTICIPATION IN THE CLASS

If you fall within the definition of the Class, you are a Class Member unless you elect to be

excluded from the Class pursuant to this Notice. If you do not request to be excluded from the Class,

-14-524343_4


you will be bound by any judgment entered with respect to the settlement in the Litigation against

Defendants whether or not you file a Proof of Claim.

If you are a Class Member, you need do nothing (other than timely file a Proof of Claim if

you wish to participate in the distribution of the Net Settlement Fund). Your interests will be

represented by Lead Counsel. If you choose, you may enter an appearance individually or through

your own counsel at your own expense.

TO PARTICIPATE IN THE DISTRIBUTION OF THE NET SETTLEMENT FUND, YOU

MUST TIMELY COMPLETE AND RETURN THE PROOF OF CLAIM THAT ACCOMPANIES

THIS NOTICE. The Proof of Claim must be postmarked on or before April 18, 2011, and delivered

to the Claims Administrator at the address below. Unless the Court orders otherwise, if you do not

timely submit a valid Proof of Claim, you will be barred from receiving any payments from the Net

Settlement Fund, but will in all other respects be bound by the provisions of the Settlement

Agreement and the Order and Final Judgment.

X. EXCLUSION FROM THE CLASS

You may request to be excluded from the Class. To do so, you must mail a written request

stating that you wish to be excluded from the Class to:

Orion Securities LitigationClaims Administratorc/o Gilardi & Co. LLCP.O. Box 990Corte Madera, CA 94976-0990

The request for exclusion must state: (1) your name, address, and telephone number; and

(2) all purchases and sales of Orion common stock made pursuant and/or traceable to Orion's initial

public offering during the Class Period, including the dates of each purchase or sale, and the number

of shares purchased or sold. YOUR EXCLUSION REQUEST MUST BE POSTMARKED ON OR

-15-524343_4


BEFORE MARCH 31, 2011. If you submit a valid and timely request for exclusion, you shall have

no rights under the Settlement, shall not share in the distribution of the Net Settlement Fund, and

shall not be bound by the Settlement Agreement or the Order and Final Judgment.

XI. DISMISSAL AND RELEASES

If the proposed Settlement is approved, the Court will enter a Final Judgment and Order of

Dismissal with Prejudice (the "Order and Final Judgment"). The Order and Final Judgment will

dismiss the Released Claims with prejudice as to all Defendants.

The Order and Final Judgment will provide that all Class Members who have not previously

validly and timely requested to be excluded from the Class shall be deemed to have released and

forever discharged all Released Claims (to the extent members of the Class have such claims)

against all Released Persons.

XII. APPLICATION FOR ATTORNEYS' FEES AND EXPENSES

At the Settlement Hearing, Lead Counsel will request the Court to award attorneys' fees not

to exceed 30% of the Settlement Fund, plus expenses, not to exceed $100,000, which were advanced

in connection with the Litigation, plus interest thereon. Class Members are not personally liable for

any such fees, expenses, or compensation.

To date, Lead Counsel have not received any payment for their services in conducting this

Litigation on behalf of Lead Plaintiff and the members of the Class, nor have counsel been

reimbursed for their out-of-pocket expenses. The fee requested by Lead Counsel would compensate

counsel for their efforts in achieving the Settlement Fund for the benefit of the Class, and for their

risk in undertaking this representation on a contingency basis. The fee requested is within the range

of fees awarded to plaintiffs' counsel under similar circumstances in litigation of this type.

-16-524343_4


XIII. CONDITIONS FOR SETTLEMENT

The Settlement is conditioned upon the occurrence of certain events described in the

Settlement Agreement. Those events include, among other things: (1) entry of the Order and Final

Judgment by the Court, as provided for in the Settlement Agreement; and (2) expiration of the time

to appeal from or alter or amend the Order and Final Judgment. If, for any reason, any one of the

conditions described in the Settlement Agreement is not met, the Settlement Agreement might be

terminated and, if terminated, will become null and void, and the Parties to the Settlement

Agreement will be restored to their respective positions as of August 26, 2010.

XIV. THE RIGHT TO BE HEARD AT THE HEARING

Any Class Member who has not validly and timely requested to be excluded from the Class,

and who objects to any aspect of the Settlement, the Plan of Allocation, or the application for

attorneys' fees and expenses may appear and be heard at the Settlement Hearing. Any such Person

must submit and serve a written notice of objection, to be received on or before March 31, 2011, by

each of the following:

CLERK OF THE COURTUNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORKDaniel Patrick Moynihan United States Courthouse500 Pearl StreetNew York, NY 10007

ELLEN GUSIKOFF STEWARTROBBINS GELLER RUDMAN

& DOWD LLP655 West Broadway, Suite 1900San Diego, CA 92101

Counsel for Lead Plaintiff

-17-524343_4


MATTHEW R. KIPPSKADDEN, ARPS, SLATE, MEAGHER

& FLOM LLP155 N. Wacker Dr., Suite 2800Chicago, IL 60606

Counsel for Orion Energy Systems, Inc.,Neal R. Verfuerth, Daniel J. Waibel,Diana Propper de Callejon, Thomas A. Quadracci,Michael J. Potts, James R. Kackley,Eckhart G. Grohmann, and Patrick J. Trotter

LEE G. DUNSTGIBSON, DUNN & CRUTCHER LLP200 Park Avenue, 47th FloorNew York, NY 10166

Counsel for Defendants Thomas WeiselPartners, LLC, Canaccord Adams, Inc., andPacific Growth Equities, LLC,n/k/a/ Pacific Growth Holdings, LLC

The notice of objection must demonstrate the objecting Person's membership in the Class, including

the number of shares of Orion common stock purchased and sold during the Class Period, and

contain a statement of the reasons for objection. Only Class Members who have submitted written

notices of objection in this manner will be entitled to be heard at the Settlement Hearing, unless the

Court orders otherwise.

XV. SPECIAL NOTICE TO NOMINEES

If you hold or held any Orion common stock during the Class Period as nominee for a

beneficial owner, then, within ten (10) calendar days after you receive this Notice, you must either:

(1) send a copy of this Notice and the Proof of Claim by First-Class Mail to all such Persons; or

(2) provide a list of the names and addresses of such Persons to the Claims Administrator:

-18-524343_4



If you choose to mail the Notice and Proof of Claim yourself, you may obtain from the

Claims Administrator (without cost to you) as many additional copies of these documents as you

will need to complete the mailing.

Regardless of whether you choose to complete the mailing yourself or elect to have the

mailing performed for you, you may obtain reimbursement for, or advancement of, reasonable

administrative costs actually incurred or expected to be incurred in connection with forwarding the

Notice and Proof of Claim and which would not have been incurred but for the obligation to forward

the Notice and Proof of Claim, upon submission of appropriate documentation to the Claims

Administrator.

XVI. EXAMINATION OF PAPERS

This Notice is a summary and does not describe all of the details of the Settlement

Agreement. For full details of the matters discussed in this Notice, you may review the Settlement

Agreement filed with the Court, which may be inspected during business hours, at the office of the

Clerk of the Court, United States District Court, Southern District of New York, Daniel Patrick

Moynihan United States Courthouse, 500 Pearl Street, New York, New York 10007.

If you have any questions about the Settlement of the Litigation, you may contact a

representative of Lead Counsel: Rick Nelson, c/o Shareholder Relations, Robbins Geller Rudman &

Dowd LLP, 655 West Broadway, Suite 1900, San Diego, CA 92101, 1-800-449-4900.

-19-524343_4


DO NOT TELEPHONE THE COURT REGARDING THIS NOTICE

DATED: , 2010 BY ORDER OF THE COURTUNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK

-20-524343_4


EXHIBIT A-2




CLASS ACTION This Document Relates To:

ALL ACTIONS. x

PROOF OF CLAIM AND RELEASE

EXHIBIT A-2

524305_4


I. GENERAL INSTRUCTIONS

1. To recover as a member of the Class based on your claims in the action entitled In re

Orion Securities Litigation, Civil Action No. 1:08-cv-01328-RJS (the "Litigation"), you must

complete and, on page hereof, sign this Proof of Claim and Release form ("Proof of Claim"). If

you fail to file a properly addressed (as set forth in paragraph 3 below) Proof of Claim, your claim

may be rejected and you may be precluded from any recovery from the Net Settlement Fund created

in connection with the proposed Settlement of the Litigation.

2. Submission of this Proof of Claim, however, does not assure that you will share in the

proceeds of the Settlement of the Litigation.

3. YOU MUST MAIL YOUR COMPLETED AND SIGNED PROOF OF CLAIM

POSTMARKED ON OR BEFORE APRIL 18, 2011, ADDRESSED AS FOLLOWS:


If you are NOT a member of the Class (as defined in the Notice of Pendency and Proposed

Settlement of Class Action ("Notice")) DO NOT submit a Proof of Claim.

4. If you are a member of the Class and you did not timely request exclusion in

connection with the proposed Settlement, you are bound by the terms of any judgment entered in the

Litigation, including the releases provided therein, WHETHER OR NOT YOU SUBMIT A PROOF

OF CLAIM.

II. CLAIMANT IDENTIFICATION

If you purchased Orion Energy Systems, Inc. ("Orion") common stock pursuant and/or

traceable to Orion's initial public offering on or about December 18, 2007, through February 7,

-1-524305_4


2008, inclusive, and held the certificate(s) in your name, you are the beneficial purchaser as well as

the record purchaser. If, however, you purchased Orion common stock and the certificate(s) were

registered in the name of a third party, such as a nominee or brokerage firm, you are the beneficial

purchaser and the third party is the record purchaser.

Use Part I of this form entitled "Claimant Identification" to identify each purchaser of record

("nominee"), if different from the beneficial purchaser of Orion common stock which forms the

basis of this claim. THIS CLAIM MUST BE FILED BY THE ACTUAL BENEFICIAL

PURCHASER(S), OR THE LEGAL REPRESENTATIVE OF SUCH PURCHASER(S), OF THE

ORION COMMON STOCK UPON WHICH THIS CLAIM IS BASED.

All j oint purchasers must sign this claim. Executors, administrators, guardians, conservators,

and trustees must complete and sign this claim on behalf of persons represented by them and their

authority must accompany this claim and their titles or capacities must be stated. The Social

Security (or taxpayer identification) number and telephone number of the beneficial owner may be

used in verifying the claim. Failure to provide the foregoing information could delay verification of

your claim or result in rejection of the claim.

III. CLAIM FORM

Use Part II of this form entitled "Schedule of Transactions in Orion Common Stock" to

supply all required details of your transaction(s). If you need more space or additional schedules,

attach separate sheets giving all of the required information in substantially the same form. Sign and

print or type your name on each additional sheet.

On the schedules, provide all of the requested information with respect to all of your

purchases of Orion common stock which took place pursuant and/or traceable to Orion's initial

public offering between December 18, 2007 and February 7, 2008, inclusive (the "Class Period"),

-2-524305_4


and all of your sales of Orion common stock which took place at any time between December 18,

2007 and September 16, 2010, inclusive, whether such transactions resulted in a profit or a loss.

You must also provide all of the requested information with respect to all of the Orion common

stock you held at the close of trading on February 10, 2008, and at the close of trading on September

16, 2010. Failure to report all such transactions may result in the rejection of your claim.

List each transaction in the Class Period separately and in chronological order, by trade date,

beginning with the earliest. You must accurately provide the month, day, and year of each

transaction you list.

The date of covering a "short sale" is deemed to be the date of purchase of Orion common

stock. The date of a "short sale" is deemed to be the date of sale of Orion common stock.

Copies of broker confirmations or other documentation of your transactions in Orion

common stock should be attached to your claim. Failure to provide this documentation could delay

verification of your claim or result in rejection of your claim.

-3-524305_4


UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

In re Orion Securities Litigation

Civil Action No. 1:08-cv-01328-RJS

PROOF OF CLAIM AND RELEASE

Must Be Postmarked No Later Than:

April 18, 2011

Please Type or Print

PART I: CLAIMANT IDENTIFICATION

Beneficial Owner's Name (First, Middle, Last)

Street Address

City State or Province

Zip Code or Postal Code Country

IndividualSocial Security Number or Corporation/OtherTaxpayer Identification Number

Area Code Telephone Number (work)

Area Code Telephone Number (home)

Record Owner's Name (if different from beneficial owner listed above)

-4-524305_4


PART II: SCHEDULE OF TRANSACTIONS IN ORION COMMON STOCK

A. Purchases (December 18, 2007 — February 7, 2008, inclusive) of Orion commonstock:

Trade Date Number of Shares Total PurchaseMo. Day Year Purchased Price

1. 1. 1.

2. 2. 2.

3. 3. 3.

IMPORTANT: Identify by number listed above all purchases in which you covered a "shortsale":

B. Sales (December 18, 2007 — September 16, 2010, inclusive) of Orion common stock:

Trade Date Number of Shares Total Sales PriceMo. Day Year Sold

1. 1. 1.

2. 2. 2.

3. 3. 3.

C. Number of shares of Orion common stock held at the close of trading on February10, 2008:

D. Number of shares of Orion common stock held at the close of trading on September16,2010:

If you require additional space, attach extra schedules in the same format as above. Sign and

print your name on each additional page.

YOU MUST READ THE RELEASE AND YOUR SIGNATURE ON PAGE _ WILL

CONSTITUTE YOUR ACKNOWLEDGMENT OF THE RELEASE.

-5-524305_4


IV. SUBMISSION TO JURISDICTION OF COURT ANDACKNOWLEDGMENTS

I (We) submit this Proof of Claim under the terms of the Settlement Agreement described in

the Notice. I (We) also submit to the jurisdiction of the United States District Court for the Southern

District of New York with respect to my (our) claim as a Class Member and for purposes of

enforcing the release set forth herein. I (We) further acknowledge that I am (we are) bound by and

subject to the terms of any judgment that maybe entered in the Litigation. I (We) agree to furnish

additional information to the Claims Administrator to support this claim if requested to do so. I

(We) have not submitted any other claim covering the same purchases or sales of Orion common

stock during the Class Period and know of no other person having done so on my (our) behalf.

V. RELEASE

I. I (We) hereby acknowledge full and complete satisfaction of, and do hereby fully,

finally, and forever settle, release, and discharge from the Released Claims each and all of the

"Released Persons," defined as Defendants, their respective families, parent entities, associates,

affiliates or subsidiaries, and each and all of their respective past, present or future officers, directors,

stockholders, representatives, employees, attorneys, financial or investment advisors, consultants,

accountants, investment bankers, commercial bankers, engineers, advisors, agents, heirs, executors,

trustees, general or limited partners or partnerships, personal representatives, estates, administrators,

predecessors, successors and assigns, insurers, co-insurers, re-insurers, and any and all of

Defendants' Affiliates.

2. "Released Claims" means all of the Released Plaintiffs' Claims and all of the

Released Defendants' Claims, as defined herein.

3. "Released Plaintiffs' Claims" means with respect to the Released Persons: all rights,

demands, claims (including "Unknown Claims" as defined below), and causes of action of every

-6-524305_4


nature and description, in law or equity, whether arising under federal, state, local, statutory,

common law, foreign law, or any other law, rules or regulations, whether fixed or contingent,

accrued or unaccrued, liquidated or un-liquidated, matured or un-matured, whether class and/or

individual in nature that: (a) Lead Plaintiff or any member of the Class asserted, or could have

asserted in this Litigation against any of the Released Persons; or (b) could have been asserted in this

Litigation, or any other action or forum by Lead Plaintiff and/or the members of the Class or any of

them against any of the Released Persons arising out of, or relating to, directly or indirectly, to the

purchase of Orion common stock during the Class Period, and the facts, matters, allegations,

transactions, events, disclosures, statements, acts, or omissions which were alleged or that could

have been alleged in the Complaint.

4. "Released Defendants' Claims" means with respect to Lead Plaintiff, Plaintiffs'

Counsel, any other counsel for any other plaintiff or plaintiffs in the Litigation, and/or any or all

members of the Class and their counsel: any and all actions, claims, debts, demands, causes of action

and rights and liabilities whatsoever (including, but not limited to, any claims for damages, interest,

attorneys' fees, expert or consulting fees, and any other costs, expenses, or liability whatsoever),

whether based on federal, state, local, statutory, or common law or any other law, rule, or regulation,

including both known claims and Unknown Claims (as defined below), that have been or could have

been asserted in the Litigation or any forum by Defendants, or the heirs, successors, and assigns of

any of them against Lead Plaintiff, Plaintiffs' Counsel, any of the Class Members or their attorneys,

which arise out of or relate in any way to the institution, prosecution, or settlement of the Litigation,

excluding any claims for breaches of the Settlement Agreement.

5. "Unknown Claims" means any Released Plaintiffs' Claim which the Lead Plaintiff or

any Class Member does not know or suspect to exist in his, her or its favor at the time of the release

-7-524305_4


of the Released Persons, which, if known by him, her or it, would or might have affected his, her or

its settlement with and release of the Released Persons, or would or might have affected his, her or

its decision not to object to this Settlement; and any Released Defendants' Claim which any

Defendant does not know or suspect to exist in his, her or its favor at the time of the release of the

Released Persons, which, if known by him, her or it, would or might have affected his, her or its

decision(s) with respect to the Settlement. Lead Plaintiff or the Class Members may hereafter

discover facts in addition to or different from those which he, she or it now knows or believes to be

true with respect to the subject matter of the Released Plaintiffs' Claims, but Lead Plaintiff and the

Class Members shall expressly, upon the Effective Date, be deemed to have, and by operation of the

Order and Final Judgment shall have, fully, finally, and forever settled and released any and all

Released Plaintiffs' Claims (including Unknown Claims, as defined herein), known or unknown,

suspected or unsuspected, contingent or non-contingent, whether or not concealed or hidden, which

now exist, or heretofore have existed, upon any theory of law or equity now existing or coming into

existence in the future, including, but not limited to, conduct that is negligent, intentional, with or

without malice, or a breach of any duty, law or rule, without regard to the subsequent discovery or

existence of such different or additional facts. Likewise, Defendants may hereafter discover facts in

addition to or different from those which he, she or it now knows or believes to be true with respect

to the subject matter of the Released Defendants' Claims, but Defendants shall expressly waive, and

by operation of the Order and Final Judgment shall have fully, finally, and forever settled and

released any and all Released Defendants' Claims (including Unknown Claims, as defined herein),

known or unknown, suspected or unsuspected, contingent or non-contingent, whether or not

concealed or hidden, which now exist, or heretofore have existed, upon any theory of law or equity

now existing or coming into existence in the future, including, but not limited to, breach of any duty,

-8-524305_4


law or rule, without regard to the subsequent discovery or existence of such different or additional

facts. Lead Plaintiff and Defendants acknowledge, and the Class Members by operation of law shall

be deemed by operation of the Order and Final Judgment to have acknowledged, that the inclusion of

"Unknown Claims" in the definition of Released Plaintiffs' Claims and Released Defendants'

Claims was separately bargained for and was a key element of the Settlement, of which this release

is a material and essential part, and expressly waive the benefits of (i) the provisions of § 1542 of the

California Civil Code, which provides that:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THECREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HERFAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWNBY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HERSETTLEMENT WITH THE DEBTOR,

and (ii) any and all provisions or rights conferred by any law of any state or territory of the United

States, or principle of common law, which is similar, comparable or equivalent to California Civil

Code §1542.

This release shall be of no force or effect unless and until the Court approves the Settlement

Agreement and the Settlement Agreement becomes effective on the Effective Date (as defined in the

Settlement Agreement).

6. I (We) hereby warrant and represent that I (we) have not assigned or transferred or

purported to assign or transfer, voluntarily or involuntarily, any matter released pursuant to this

release or any other part or portion thereof.

7. I (We) hereby warrant and represent that I (we) have included information about all

of my (our) transactions in Orion common stock which occurred during the Class Period as well as

the number of shares of Orion common stock held by me (us) at the close of trading on February 10,

2008 and the close of trading on September 16, 2010.

-9-524305_4

I


8. I (We) certify that I am (we are) not subject to backup withholding under the

provisions of Section 3406(a)(1)(C) of the Internal Revenue Code.

Note: If you have been notified by the Internal Revenue Service that you are subject to

backup withholding, please strike out the language that you are not subject to backup withholding in

the certification above.

I declare under penalty of perjury under the laws of the United States of America that the

foregoing information supplied by the undersigned is true and correct.

Executed this day of (Month/Year)

in (City) (State/Country)

(Sign your name here)

(Type or print your name here)

(Capacity of person(s) signing,e.g., Beneficial Purchaser,Executor or Administrator)

ACCURATE CLAIMS PROCESSING TAKES ASIGNIFICANT AMOUNT OF TIME.

THANK YOU FOR YOUR PATIENCE.

Reminder Checklist:

1. Please sign the above release and declaration.

2. Remember to attach supporting documentation, if available.

3. Do not send original stock certificates.

4. Keep a copy of your claim form for your records.

-10-524305_4


5. If you desire an acknowledgment of receipt of your claim form, please send itCertified Mail, Return Receipt Requested.

6. If you move, please send us your new address.

-11-524305_4


EXHIBIT A-3




CLASS ACTIONThis Document Relates To:

ALL ACTIONS. x

SUMMARY NOTICE

EXHIBIT A-3

5218044


TO: ALL PERSONS WHO PURCHASED ORION ENERGY SYSTEMS, INC. ("ORION")COMMON STOCK PURSUANT AND/OR TRACEABLE TO ORION'S INITIALPUBLIC OFFERING ON OR ABOUT DECEMBER 18, 2007, THROUGH FEBRUARY 7,2008, INCLUSIVE

YOU ARE HEREBY NOTIFIED that pursuant to an Order of the United States District

Court for the Southern District of New York, a hearing will be held on April 14, 2011, at 10:00 a.m.,

before the Honorable Richard J. Sullivan, at the Daniel Patrick Moynihan United States Courthouse,

Southern District of New York, 500 Pearl Street, New York, NY 10007, for the purpose of

determining (1) whether the proposed settlement of the Litigation for the sum of $3,250,000 in cash

should be approved by the Court as fair, reasonable, and adequate; (2) whether, thereafter, this

Litigation should be dismissed with prejudice against the Defendants as set forth in the Settlement

Agreement dated September 16, 2010; (3) whether the Plan of Allocation of settlement proceeds is

fair, reasonable, and adequate and therefore should be approved; and (4) the reasonableness of the

application of Lead Counsel for the payment of attorneys' fees and expenses incurred in connection

with this Litigation, together with interest thereon.

If you purchased Orion common stock pursuant and/or traceable to Orion's initial public

offering on or about December 18, 2007, through February 7, 2008, inclusive, your rights may be

affected by this Litigation and the settlement thereof. If you have not received a detailed Notice of

Pendency and Proposed Settlement of Class Action and a copy of the Proof of Claim and Release,

you may obtain copies by writing to Orion Securities Litigation, Claims Administrator, c/o Gilardi &

Co. LLC, P.O. Box 990, Corte Madera, CA 94976-0990, or by downloading this information at

www.gilardi.com. If you are a Class Member, in order to share in the distribution of the Net

Settlement Fund, you must submit a Proof of Claim and Release postmarked no later than April 18,

2011, establishing that you are entitled to a recovery. You will be bound by any judgment rendered

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in the Litigation unless you request to be excluded, in writing, to the above address, postmarked by

March 31, 2011.

Any objection to any aspect of the settlement must be filed with the Clerk of the Court no

later than March 31, 2011, and received by the following no later than March 31, 2011:

ROBBINS GELLER RUDMAN& DOWD LLP

ELLEN GUSIKOFF STEWART655 West Broadway, Suite 1900San Diego, CA 92101

Counsel for Lead Plaintiff

SKADDEN, ARPS, SLATE, MEAGHER& FLOM LLP

MATTHEW R. KIPP155 N. Wacker Dr., Suite 2800Chicago, IL 60606

Counsel for Orion Energy Systems, Inc.,Neal R. Verfuerth, Daniel J. Waibel,Diana Propper de Callejon, Thomas A. Quadracci,Michael J. Potts, James R. Kackley,Eckhart G. Grohmann, and Patrick J. Trotter

GIBSON, DUNN & CRUTCHER LLPLEE G. DUNST200 Park Avenue, 47th FloorNew York, NY 10166

Counsel for Defendants Thomas WeiselPartners, LLC, Canaccord Adams, Inc., andPacific Growth Equities, LLC,n/k/a/Pacific Growth Holdings, LLC

PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE

REGARDING THIS NOTICE.

DATED: , 2010 BY ORDER OF THE COURTUNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK

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